General Council of the Assemblies of God v. MegaSports Camps
Claim Number: FA1001001305277
Complainant is General Council of the Assemblies of God (“Complainant”), represented by Christopher
W. Schneider, of
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <megasportscamps.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 27, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 29, 2010.
On January 29, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <megasportscamps.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On February 1, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 22, 2010 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@megasportscamps.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 2, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <megasportscamps.com> domain name is confusingly similar to Complainant’s MEGA SPORTS CAMP mark.
2. Respondent does not have any rights or legitimate interests in the <megasportscamps.com> domain name.
3. Respondent registered and used the <megasportscamps.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, General Council
of the Assemblies of God, is the world’s largest Pentecostal fellowship. Complainant holds trademark registrations for
the MEGA SPORTS CAMP and related marks with the United States Patent and
Trademark Office (“USPTO”) in connection with its sports training camps and
materials with a religious emphasis (e.g.,
Reg. No. 3,251,688 issued June 12, 2007).
Respondent, MegaSports Camps, registered the <megasportscamps.com> domain name on February 19, 2008. Respondent’s disputed domain name leads to a website offering sports camp services that are similar to and in competition with Complainant’s.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant owns trademark registrations for the MEGA SPORTS CAMP and related marks with the USPTO (e.g., Reg. No. 3,251,688 issued June 12, 2007). The Panel finds that Complainant’s registration of the MEGA SPORTS CAMP mark with the USPTO sufficiently establishes Complainant’s rights in the mark under Policy ¶ 4(a)(i). See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Enter. Rent-A-Car Co. v. David Mizer Enters., Inc., FA 622122 (Nat. Arb. Forum Apr. 14, 2006) (finding that the complainant’s registration of the ENTERPRISE, ENTERPRISE RENT-A-CAR, and ENTERPRISE CAR SALES marks with the USPTO satisfied the requirement of demonstrating rights in the mark under consideration pursuant to Policy ¶ 4(a)(i)).
Complainant argues that Respondent’s disputed domain name is confusingly similar to Complainant’s MEGA SPORTS CAMP mark. The only distinguishing features between Complainant’s mark and Respondent’s disputed domain name are the addition of an “s” to end of Complainant’s mark, the deletion of the spaces between words, and the addition of the generic top-level domain (“gTLD”) “.com.” The Panel finds that an “s” added to Complainant’s mark is insufficient to distinguish the disputed domain name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the additions of the letter “s” and generic top-level domains to the disputed <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid the confusing similarity between the domain names and the complainant’s BARNESANDNOBLE.COM mark pursuant to Policy ¶ 4(a)(i)); see also T.R. World Gym-IP, LLC v. D’Addio, FA 956501 (Nat. Arb. Forum May 22, 2007) (finding that the addition of the letter “s” to a registered trademark in a contested domain name is not enough to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)). Deleted spaces and the gTLD “.com” are irrelevant in determining confusingly similarity according to Policy ¶ 4(a)(i) because spaces are not permissible in domain names and gTLDs are required. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant). Therefore, the Panel finds that Respondent’s disputed domain name is confusingly similar to the Complainant’s MEGA SPORTS CAMP mark.
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant argues that Respondent lacks rights and legitimate interests in the disputed domain name. According to Policy ¶ 4(c), Complainant must only present a prima facie case before the burden then shifts to Respondent to demonstrate its rights and legitimate interests in the disputed domain name. The Panel finds that Complainant has made a prima facie case in these proceedings. As Respondent failed to respond to the allegations made against it, the Panel may assume that Complainant’s allegations are true and that Respondent lacks rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). The Panel, however, elects to consider the evidence presented in light of the Policy ¶ 4(c) factors to determine whether Respondent has any rights and legitimate interests in the disputed domain name.
Respondent is not commonly known by the disputed domain
name. Despite that the WHOIS information
for the disputed domain name identifies the registrant as “MegaSports Camps,”
there is no other evidence corroborating that Respondent is commonly known by
the disputed domain name. The Panel
finds, therefore, that Respondent is not commonly known by the disputed domain
name and accordingly lacks rights and legitimate interests in the disputed
domain name under Policy ¶ 4(c)(ii). See Yoga Works, Inc. v. Arpita,
FA 155461 (Nat. Arb. Forum June 17,
2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com>
domain name despite listing its name as “Shanti Yoga Works” in its WHOIS
contact information because there was “no
affirmative evidence before the Panel that the respondent was ever ‘commonly
known by’ the disputed domain name prior to its registration of the disputed
domain name”); see also City
News & Video v. Citynewsandvideo, FA 244789 (Nat. Arb. Forum May 5,
2004) (“Although Respondent’s WHOIS information lists its name as
‘citynewsandvideo,’ there is no evidence before the Panel to indicate that
Respondent is, in fact, commonly known by the disputed domain name
<citynewsandvideo.com> pursuant to Policy ¶ 4(c)(ii).”).
Complainant alleges that Respondent’s disputed domain name
redirects Internet users to a website offering services directly in competition
with Complainant. Complainant asserts
that this use of the disputed domain name is not a bona fide offering of goods or services under
Policy ¶ 4(c)(i) or a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii). The Panel finds that Respondent’s use of the
disputed domain name to offer competing goods is not a bona fide offering of goods or services or a legitimate
noncommercial or fair use in accordance with Policy ¶¶ 4(c)(i)
or 4(c)(iii). See Am. Int’l Group, Inc. v. Benjamin, FA 944242 (Nat. Arb. Forum May
11, 2007) (Panelist Tyrus R. Atkinson, Jr., dissenting) (finding that the
respondent’s use of a confusingly similar domain name to advertise real estate
services which competed with the complainant’s business did not constitute a bona fide offering of goods or services
under Policy ¶ 4(c)(i), or a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also DLJ
Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is
not using the disputed domain name in connection with a bona fide offering of
goods and services because Respondent is using the domain name to divert
Internet users to <visual.com>, where services that compete with
Complainant are advertised.”).
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Respondent’s disputed domain name leads to a website offering sports camp services related to and in competition with Complainant. Complainant contends that Respondent’s use of Complainant’s mark in the disputed domain name disrupts Complainant’s business because Internet users are redirected to Respondent’s website where competing services are offered instead of to Complainant’s site. The Panel finds this diversion of Internet users and disruption of Complainant’s business is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to the complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate websites that compete with the complainant’s business).
Complainant contends that Respondent’s use of Complainant’s mark in the disputed domain name and its website offering similar competing services are efforts to attract Complainant’s customers for Respondent’s own financial gain. The Panel finds Respondent’s use of the disputed domain name to profit from Internet users potentially seeking Complainant supports a finding of bad faith registration and use under Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)); see also World Wrestling Fed’n Entm’t, Inc. v. Ringside Collectibles, D2000-1306 (WIPO Jan. 24, 2001) (concluding that the respondent registered and used the <wwfauction.com> domain name in bad faith because the name resolved to a commercial website that the complainant’s customers were likely to confuse with the source of the complainant’s products, especially because of the respondent’s prominent use of the complainant’s logo on the site).
The Panel finds Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <megasportscamps.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: March 16, 2010
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